ILLINOIS POLLUTION CONTROL BOARD

January 8, 1987

ILLINOIS POWER COMPANY

)

(Vermilion Power Plant),

)

Petitioner,

v.

)

PCB 86—12

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

ORDER OF THE BOARD (by R. C. Flemal):

This matter comes again before the Board upon a December 10,

1986, Motion for Reconsideration filed on behalf of the Illinois

Power Company (“IPC”), to which the Illinois Environmental

Protection Agency (“Agency”) responded on December 22, 1986. IPC

requests that the Board reconsider its final Opinion and Order in

this cause as issued on November 6, 1986. The Agency opposes

reconsideration.

In its original petition, as filed on January 21, 1986, IPC

contested fifteen conditions of a reissued NPDES permit. IPC

contended that there were both procedural and ~factualM flaws

associated with reissuance of the permit. For this reason, IPC

requested, among other matters, that the permit be remanded to

the Agency. IPC specifically noted at hearing:

These procedural errors alone as affirmed by the

Board’s recent decision in a parallel casç

——

that is

the Illinois Power Company versus I.E.P.A’ for its

Hennepin power plant

——

are sufficient for each

contested condition to be set aside and remanded to

the Agency with instruction that it comply with the

applicable State and Federal Permitting

requirements. (PCB 86—12 Board Hearing Transcript,

p. 5—6)

1 The Board notes that the referenced appeal is Illinois Power

Company v. Illinois Environmental Protection Agency, PCB 85—119,

decidea March 27, 1986. This appeal dealt with IPC’s Hennepin

Power Plant. It is generally referred to within later pleadings,

and is so referred to herein, as Hennepin II to distinguish it

from an earlier appeal also dealing with IPC’s Hennepin facility.

74-379

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In the same hearing the Agency admitted to procedural

errors, and on this basis likewise requested remand. The Agency

stipulated:

Specifically Illinois Power has raised three

procedural errors regarding this particular permit.

The first one is that E.P.A. failed to issue written

responses with the final permit. This is true. We

did not. The second procedural error that Illinois

Power raises is that the fact sheets that accompany

the draft permits did not contain explanations of

exceptional circumstances which would allow E.P.A. to

monitor or to require monitoring of internal

wastestreams. We have just stipulated that 001(b)

could be interpreted as an internal wastestrearn, and

it is true that the fact sheet did not contain an

explanation of the exceptional circumstances. And

the third procedural error that Illinois Power raised

was that there was a limitation or a condition

included in the final permit that had not appeared in

the previous draft permits, and that this was not

explained pursuant to 40 CFR 124.17, which is also

true. (Hearing Transcript, p. 14).

In consideration of the common desire of Petitioner and

Respondent that this matter be remanded back to the Agency, the

Board so ordered on November 6, 1986.

In addition to simply requesting remand of this matter,

however, IPC also requested that the Board rule on certain

“factual” issues contested by IPC. Among others, IPC desired

that the Board rule on the question of whether certain of the

Vermilion plant’s wastestreams are actually “internal” in

character. The Board declined to do so, noting in its November

6, 1986, Opinion and Order “that rectification of the procedural

errors is a necessary prelude in this instance to consideration

of any of the other matters of possible dispute”. IPC now claims

that in so doing the Board expressed “a total abdication...of its

statutory responsibilities and a complete failure..to adjudicate

the dispute before it”, and contends that failure of the Board to

make findings on these factual questions will cause Petitioner to

incur unnecessary costs. Additionally, IPC contends that the

Board’s decision is contrary to the goal of achieving

administrative efficiency.

The Agency counters that “the Board has not foresworn its

duties and responsibilities by so ruling”, and cites case

precedent in support of the consistency of the position adopted

by the Board. Furthermore, the Agency repeats its contention as

originally raised in this cause that questions of factual

characterization of a complainant’s facility or process are not

ripe for decision until after a permit has been remanded, and

74-380

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—3—

then reissued with the Agency’s justifications for the inclusion

of any special conditions (e.g., those relating to the monitoring

of alleged ~interna1” wastestreams).

The Board continues to find merit in the Agency’s

position. In Uennepin II the Board found, in IPC’s favor, that

the Agency was~inerror in not responding in writing to comments

submitted on a draft permit by IPC. The clear purpose of such

written communication is to assure that a permit applicant has

full opportunity to address its concerns with the permitting

Agency prior to issuance of the permit. Administrative

efficiency is obviously served when the potential permittee and

the permitter have available and avail themselves of the

opportunity to completely communicate and potentially resolve any

differences.

This is also precisely the situation which exists in the

instant cause, where the Agency has admitted to failure to

communicate in a procedurally proper manner with IPC and has

subsequently requested the opportunity to do so. There is some

indication in this record that future communication between IPC

and the Agency may bear fruit by helping to resolve their

differences. The Agency, for example, stipulated at hearing in

this matter that IPC’s outfall 001(b) could be interpreted as an

“internal” wastestream (Hearing Transcript, p. 13—14). This

action by the Agency indicates that on remand there may be some

modification of its views concerning the substantive issues which

IPC has contested in this proceeding. Should this scenario

materialize, IPC may not find it necessary to appeal the reissued

permit, or may undertake an appeal based on a lesser number of

substantive issues. In either of those events, the Board would

not in the future have to reach findings on some or all of the

issues which IPC now seeks the Board to adjudicate. The Board

will, therefore, today refrain from reaching findings on these

factual issues, believing such judicial parsimony to be prudent

at this time. The Board’s reluctance to use its adjudicative

power to decide issues that it eventually might not otherwise

ha~ to :lecide h~spreviously been upheld. See County of La

~11e ex rel. Peterlin v. Illinois Pollution Control Board, 146

Ill. App. 3d 603 (1986).

IPC’s assertion that it will incur unnecessary costs if the

substantive issues are not now addressed is of dubious merit.

IPC is, in effect, again arguing that these issues are ripe for

decision. For the reasons already stated, the Board rejects this

argument.

At least some of IPC’s reluctance to rely on negotiation

opportunities available to it at the Agency level appears to stem

from its speculation that it will not achieve its desired outcome

at that level. This is an irrelevant issue to the cause as it

now stands. This Board has already done everything asked of it

74-381

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—4—

by IPC via the Hennepin II Opinion and Order to assure that IPC

and all like applicants have the opportunity for full interaction

at the Agency level.

The Board has noted for the benefit of both IPC and the

Agency its hope that “the parties will take appropriate actions

to minimize the administrative inefficiencies” (Hennepin II, p.

5) caused by remand to the Agency. Though IPC has clearly chosen

to do otherwise in this matter, •the Board nevertheless continues

to hope that such actions will occur in this and other parallel

cases pending.

For the reasons given above, the motion for reconsideration

is denied.

As a final matter, in the last sentence of its Motion for

Reconsideration, IPC additionally “requests oral arguement” to

“further support and articulate for the Board the relief

requested herein”. Although not so characterized in the Notice

of Filing or within the body of the Motion for Reconsideration,

the Board construes this sentence to constitute an additional

Motion for Oral Argument. Counsel for IPC is well aware that the

Board, as a matter of practicability, is unable to allow oral

argument in all but the most extraordinary situation. IPC has

not demonstrated that the instant matter is such a situation.

Moreover, IPC has had abundant opportunity to present its

position, as the voluminous filings of Petitioner attest. The

motion for oral argument is denied.

IT IS SO ORDERED.

I, Dorothy M.

Gunn, Clerk of the Illinois Pollution Control

Board, hereby

certify that the above Opinion a,x~d Order was

adopted on the ______________________ day of

-~--d~-~~

,

1987,

by a vote of

~,—O

~.

/

O6~4

Dorothy M. G’unn,

~

Clerk

Illinois Pollution Control Board